Pennsylvania residents have the legal right to commence legal action to obtain a settlement for medical malpractice even if they signed a waiver before the procedure. However, every case is different, and the chance of success depends on the specific circumstances, such as the nature of the harm, the waiver’s language, and scope. Informed consent disclosures often include waivers and are not an absolute bar to civil lawsuits.
Pennsylvania law requires all healthcare providers to obtain a signed informed consent disclosure before many procedures. The Pennsylvania MCare Act, § 504, requires physicians and other healthcare providers to explain the procedures, material risks, potential alternatives, and other specifics that any reasonable individual and patient needs so they can make an informed decision before signing the document. Executing the form confirms the consent while acknowledging the known risks.
The legislation requires it for procedures, including surgery, radiation, or chemotherapy, anesthesia, blood transfusions, and experimental treatments. While the waiver releases the provider from liability for known or inherent risks associated with the procedure, confirming you understand and accept those risks, it does not shield them from liability under specific circumstances, and that includes the following:
The waiver typically does not shield them from a claim with each element of medical malpractice. If your injuries resulted from substandard medical care, and there was a breach of the acceptable standard of healthcare, there could be cause for legal action.
That means there was a deviation during your procedure, which may include failing to follow the appropriate protocols or provide the same level of care another reasonable provider would have in the same or similar circumstances. The courts, judges, and the regulations all view the disclosures as providing limited protection against professional negligence, particularly when public policy concerns apply.
The waivers are also generally unenforceable against gross negligence, willful or reckless misconduct, and other serious forms of wrongdoing. Pennsylvania courts define gross negligence as conduct that shows a flagrant, reckless, or severely deviant departure from the acceptable and professional standard of medical care.
It is more than carelessness, laxity, or indifference, and involves a conscious or extreme disregard for the severe and unjustifiable risk to the patient they are treating. While there are overlaps, willful misconduct typically implies intentional wrongdoing or the intent to cause the patient harm, despite knowing that their actions could have severe or fatal consequences.
A waiver might limit your claim in some circumstances, or bar recovery altogether if there is a direct link between your injuries and the inherent risks. However, each case has unique consequences and specifics, and the only way to determine whether you have a potential medical malpractice case is by reviewing it with a qualified legal professional.
However, signing the disclosure does not automatically disqualify you from obtaining damages after a healthcare provider’s negligence causes you harm. Call our office to schedule an appointment and speak with our experienced lawyer about your questions.